Maybe this time could be used to reflect on what can be achieved by hanging convicts who have held an exceptional prison record. -Photo by Zofeen Ebrahim
The phaansi ghaat (the gallows) inside Karachi's Central Jail has remained unused for over five years after the last government of the Pakistan People's Party (PPP) put a moratorium on executions. The last man to get the death penalty was Jawed Malik who was executed in February 2008. In the last 66 years, 57 executions took place there.
In his first speech to the parliament, in 2008, Prime Minister Yousaf Raza Gilani had announced commutation of all death row prisoners to life imprisonment. However, the PPP-led government failed to completely scrap it off from the statute books although it had planned to table a bill before its term expired. According to the Human Rights Watch, a petition calling for the commutation of death sentence is being considered by the Supreme Court of Pakistan.
So when the moratorium ended on June 30, the newly-elected government of Nawaz Sharif quickly announced its intention of not extending it. The reason, some say, was because it wants to pave way for Pervez Musharraf to be tried for treason, the punishment for which is execution?
But rights activist, I.A. Rehman, disagreed. "Nawaz Sharif would have extended the moratorium if he was sure of Musharraf being sentenced to death; because he dare not hang a general. He would not want to pick up fight with the army which would not want to see one of its former leaders imprisoned or executed."
"His desire to retain the death penalty is derived probably from the brutalised psyche of his kitchen coterie," he said, adding that Sharif used to declare his resolve to hang people by the lamp post and that killings in police encounters increase in Punjab when his brother, Shahbaz Sharif is in power.
"Another reason could be Nawaz’s amenability to the mullahs’ view that the death penalty is a religious obligation" Rehman said.
Last week, when the government announced the hanging schedule, the first to be sent to the gallows were to be three Lashkar-e- Jhangvi (LeJ) men. But there has been a last-minute halt.
Outside the brownish solid steel gate that keeps the imprisoned from free life, there is a flurry of activity. Prisoners wearing bright orange shalwar kameez and men in uniform are going in and out, carrying plastic bags that have passed a cursory check.
The news of the postponement of the executions has drawn a mixed response.
"The government has cowered to the militant's pressure, what else!" grinned a policemen, stroking his moustache. Last week the banned LeJ, which has links with the Taliban, had threatened the government of dire consequences if any of its members were executed.
"The government must decide, once and for all, whether to abolish death penalty or to execute the prisoners, this drama should end!" said someone from the prison authorities requesting his name to be withheld.
For men on death row, this trauma is unjustified; it's like dying a little every day!
According to research carried out by Sarmad Ali, an advocate of the High Court, in Lahore, and whose firm deals with "hardcore crimes", death row prisoners in the Punjab are over 4,900, over 200 in Sindh, 100 in Khyber Pakhtunkhwa and more than two dozen in Balochistan.
Ali is irrevocably against capital punishment. His law firm is representing over 30 inmates who are on the list. He says,
When, I say I am against death penalty, it means I want it abolished. I don't want anyone sent to the gallows, not even LeJ members!
Instead, he said, the parliament should bring reforms in the criminal justice system.
Many within the legal fraternity, as well as rights activists charge that there are serious defects in Pakistan's criminal justice system. Coupled with chronic corruption, a weak investigation and bias against religious minorities, the probability of miscarriage of justice is quite high.
Currently, 150 countries worldwide, including 30 states in the Asia-Pacific region, have abolished the death penalty in law or in practice.
But the problem of scrapping off the law may not be as easy because the Constitution of Pakistan provides an ambiguous protection to death penalty. Article 227 states that "no law shall be enacted which is repugnant to the injunctions of Islam".
But then it also talks about right to life in Article 9 stating: "No person shall be deprived of life or liberty, save in accordance with law".
"I think right to life should prevail over Article 227 of the Code. I believe, the right to life is a fundamental right and should be given to everyone and religious values should be made compatible with modern age," pointed out Ali.
According to him, the parliament and political parties should take a lead in educating people to explain to them that abolition of the death penalty wouldn't be in breach of Islamic values.
Whether the recent postponement was the doing of the LeJ, or a softening of the heart of the Nawaz Sharif government towards this archaic practice, the time could perhaps be best used as an opportunity to begin conversations on the issue.
Maybe the time could also be used to reflect on what can be achieved by hanging convicts who have held an exceptional prison record, like Zulfikar Ali, who has been dodging the noose since 1998. Having served more than 14 years in prison, he not only continued his studies, but tutored dozens of convicts, many of whom having sat for matriculation, intermediate and even bachelors exams.
"What's the point of hanging a person who has turned out to be such a useful citizen? What will the government get out of his execution?" asked Rehman.
"I am against the death penalty because it sustains a system of retributive justice, while a modern society should reform and reclaim all those who go astray. Also our judicial system is much too flawed and the Qisas law has made death penalty biased against the weak and the poor.”
In his eye,
the state becomes a criminal when it takes someone's life.
Asked if it was more religion than politics that capital punishment still remained, he said: "Religion more than politics, but I’d say, inertia above all. The state is a victim of the belief that Islam provides for mandatory death penalty and thus this cruel practice cannot be done away with."
He said that in 1947, when Pakistan came into being, there were just two crimes under which execution could take place, murder and fasad fil arz (loosely translated to mean chaos or violence on earth). These are the only two offences that carry the maximum of death sentence crime in Islam," said Rehman. Today, there are as many as 28 including blasphemy and cyber crimes.
"You can be hanged for gang rape. So in essence, the message you are giving to the perpetrators is that after raping the poor woman, kill her so that there is no evidence. Same is the case with drug trafficking where innocent women and children are used," Rehman added, saying capital punishment was "thoughtlessly" given for crimes which cannot be considered "serious".
He does not believe hanging deters crime. "Various researches have shown, time and again, that the death penalty has no deterrent effect. It is contrary to the norms of justice," he said.
Therefore, says Rehman, till the time that the country can come to a consensus to abolish death penalty, the aim should be to temper its use. But given rising militancy and daily bomb attacks, the support for scrapping death penalty seems weak.